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In re Marriage of Morgan

Court of Appeals of Colorado, Third Division

August 9, 2018

In re the Marriage of Carol Crosley Morgan, Appellant, and Carter Edward Morgan, Appellee.

          Prior Opinion Announced June 28, 2018 WITHDRAWN

         OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(e)” ON June 28, 2018, IS NOW DESIGNATED FOR PUBLICATION

          Weld County District Court No. 14DR30427 Honorable Ryan L. Kamada, Judge

          Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado; Ericka J.A. Fowler, Boulder, Colorado, for Appellant

          Antolinez Miller LLC, Joseph H. Antolinez, Melissa E. Miller, Centennial, Colorado, for Appellee

          OPINION

          FOX, JUDGE.

         ¶ 1 In this dissolution of marriage proceeding, Carol Crosley Morgan (mother) appeals that portion of the permanent orders allocating parental responsibilities for her two minor children with Carter Edward Morgan (father). We reverse the parenting time order and remand for the magistrate to enter a new parenting time order based on mother's stated intention to relocate to California. In all other respects, we affirm.

         I. Background

         ¶ 2 Well before the permanent orders hearing, mother notified the magistrate that she wished to move with the children to California. She sought orders that would name her the children's primary residential parent and decision-maker.

         ¶ 3 The parents agreed that Dr. Kevin Albert would conduct a parental responsibilities evaluation (PRE) to assess the parenting issues, including mother's proposed move. Dr. Albert recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility.

         ¶ 4 At father's request, the magistrate appointed Beth Lieberman to perform a supplemental PRE. Ms. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother.

         ¶ 5 After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado. He found that their best interests would be served if the parents exercised equal parenting time, with mutual decision-making responsibilities.

         II. The Magistrate Did Not Follow Spahmer

         ¶ 6 When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. See Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005). Rather, "in the initial determination of parental responsibilities . . . a [district] court must accept the location in which each party intends to live, and allocate parental responsibilities, including parenting time, accordingly." Id. at 164; see also § 14-10-124(1.5)(a)(VIII), C.R.S. 2017 (requiring the court to consider "[t]he physical proximity of the parties to each other as this relates to the practical considerations of parenting time").

         ¶ 7 Mother contends that the magistrate failed to follow this principle by entering a parenting time order requiring her to remain in Colorado. We review de novo whether the magistrate applied the proper legal standard, see In re Parental ...


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